Walters v Magistrates' Court of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 01863

PAUL FRANCIS WALTERS	Plaintiff
v
MAGISTRATES’ COURT OF VICTORIA	First Defendant
and
COUNTY COURT OF VICTORIA	Second Defendant
and
MICHAEL BOURCHIER	Third Defendant

S CI 2013 01864

PAUL FRANCIS WALTERS	Plaintiff
v
COUNTY COURT OF VICTORIA	First Defendant
and
MICHAEL BOURCHIER	Second Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2015
DATE OF JUDGMENT:	24 March 2015
CASE MAY BE CITED AS:	Walters v Magistrates’ Court of Victoria & anor
MEDIUM NEUTRAL CITATION:	[2015] VSC 88

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ADMINISTRATIVE LAW – Judicial review – Appeal from Magistrates’ Court to County Court – Validity of charge – Amendment of charge-sheet – ‘All proceedings connected with the hearing’ – ss 8(2), 8(4) and 256 Criminal Procedure Act 2009 – ss 49(1)(c) and 53(1) Road Safety Act 1986.

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APPEARANCES:	Counsel	Solicitors
S CI 2013 01863
For the Plaintiff	Mr P Billings	Stephen Andrianakis & Associates
For the Third Defendant	Ms F Dalziel	Victorian Government Solicitor
S CI 2013 01864
For the Plaintiff	Mr P Billings	Stephen Andrianakis & Associates
For the Second Defendant	Ms F Dalziel	Victorian Government Solicitor

HER HONOUR:

On 3 September 2012, Paul Francis Walters, the plaintiff, appeared before the Magistrates’ Court at Moorabbin charged with four offences under the Road Safety Act 1986 (‘RSA’). One of the charges was withdrawn by the prosecutor and struck out by the Court. The first charge (the charge) related to a refusal to undergo a preliminary breath test pursuant to s 49(1)(c) of the RSA. It is this charge that is the subject of the current reviews before this Court. The plaintiff pleaded guilty to the two remaining charges.

The charge was amended at the Magistrates’ Court hearing, more than 12 months after the alleged commission of the offence.

The plaintiff was convicted of all three charges.

On 3 September 2012 the plaintiff lodged an appeal in the County Court against conviction on the charges. The appeal against the sentence was heard in the County Court on 14 February 2013 in case number B11891648 by her Honour Judge Millane.

The plaintiff now brings two applications for judicial review pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’):

(a) Proceeding S CI 2013 01863 in respect of the Magistrates’ Court proceeding (Magistrates’ Court review); and

(b) Proceeding S CI 2013 01864 in respect of the County Court proceeding (County Court review).

The two issues arising out of the plaintiff’s grounds of appeal in the Magistrates’ Court review are:

(a) Whether the charge was valid as originally framed. That is, whether one of the four sub-sections in s 53(1) of the RSA must be disclosed in the charge-sheet; and
(b)If the charge was not properly framed, was it appropriate for the Magistrate to permit amendment to the charge outside the limitation period.

In relation to the County Court review, the issue is whether the amendment made to the charge pursuant to s 8(2) of the Criminal Procedure Act 2009 (‘CPA’) continued to operate on appeal in the County Court.

The plaintiff issued proceedings in this Court on 15 April 2013.[1]
[1]Orders dated 20 May 2013 included an order extending the time for the plaintiff for filing the application under O 56.01(1) of the Rules to 15 April 2013.

In both proceedings the plaintiff relies on the affidavits of Paul Francis Walters sworn 20 July 2014 and written submissions.

The third defendant in the Magistrates’ Court review and the second defendant in the County Court review rely on written submissions.

Proceeding No S CI 2013 01863
Background

The charge-sheet and summons produced in the Magistrates’ Court on 3 September 2012 set out the charge as it came before the Court on that date.[2]
[2]Affidavit of Paul Francis Walters sworn 20 July 2014, Exhibit PPW1.

The charge was recorded as follows:

The accused at Brighton on 16/05/2011 having been required to undergo a preliminary breath test in accordance with s 53(1) of the Road Safety Act 1986, did refuse to undergo such a breath test within 3 hours of being the driver of a motor vehicle involved in an accident.

The plaintiff was charged with offences pursuant to ss 61(1)(a), 61(1)(f) and 65 of the RSA.

The above charges were brought on for hearing on 3 September 2012 at the Magistrates’ Court in Moorabbin before Acting Magistrate Brian Joseph Clifford (the Magistrate).

In respect of the charge pursuant to s 49(1)(c) of the RSA the plaintiff pleaded not guilty. He was convicted and fined an aggregate sum of $5,000 together with the other two offences along with $71.40 statutory costs. All licences and permits held by the plaintiff under the RSA were cancelled and he was disqualified from obtaining any such licence for a period of five years effective from 26 August 2011.

In respect of the charges under ss 61(1)(a) and 65 of the RSA, the plaintiff pleaded guilty and was convicted and fined an aggregate sum of $5,000 together with the other two offences along with $71.40 statutory costs. All licences and permits held by the plaintiff under the RSA were cancelled and he was disqualified from obtaining any such licence for a period of five years effective from 26 August 2011.

The charge pursuant to s 61(1)(f) was withdrawn by the prosecutor and struck out by the Magistrates’ Court.

On 3 September 2012, the plaintiff lodged a notice of appeal in the County Court against conviction on all three charges.

The appeal against sentence was heard on 14 February 2013 before Judge Millane.

With respect to the three charges under ss 49(1)(c), 61(1)(a) and 65 of the RSA, the plaintiff was convicted but the sentence was varied, in that, the period of disqualification was reduced to a period of 50 months effective from 26 August 2011.[3]
[3]Affidavit of Paul Francis Walters sworn 20 July 2014, Exhibit PFW4.

At the Magistrates’ Court proceeding on 13 September 2011 the prosecutor submitted that the charge as initially framed was a sufficient charge. In the alternative, the prosecutor submitted that if the Magistrate was of the view that the charge was not properly framed, an amendment of the charge should be allowed.[4]
[4]Ibid Exhibit PFW5, 4–6.

Counsel for the plaintiff submitted to the Magistrates’ Court that the charge was improperly framed and did not disclose an offence known to the law. It was submitted that it was not open to the Magistrate to amend the charge because pursuant to ss 8(3) and (4) of the CPA such amendment was prohibited.[5]
[5]Ibid 7–14.

The Magistrate considered that the charge did not require amendment but nevertheless allowed the amendment to specify the source of power.[6] The Magistrate allowed an amendment to the charge by inserting the sub-section (c) of s 53(1) of the RSA.
[6]Ibid 14.

Magistrates’ Court Review

The plaintiff brings this proceeding pursuant to O 56 of the Rules. The grounds of review set out in the originating motion dated 15 April 2013 are as follows:

(a)That the first named defendant his Honour Acting Magistrate Brian Joseph Clifford:
(i)denied the plaintiff procedural fairness and/or
(ii)natural justice and/or
(iii)refused to exercise a jurisdiction that he had and/or
(iv)exercised a jurisdiction that he did not have and/or
(v)erred at law and/or
(vi)there was error of law on the face of the record in convicting the Plaintiff of an offence under s 49(1)(c) of the Road Safety Act 1986 (‘the Act’) whereby he:
(i)Erred in amending the charge under s 49(1)(c) of the Act pursuant to s 8(1) of the Criminal Procedure Act 2009 to disclose an offence outside the 12 month limitation period; and/or
(ii)erred by convicting the Plaintiff of the amended charge.

(b)That the first named defendant his Honour Acting Magistrate Brian Joseph Clifford:
(i)denied the plaintiff procedural fairness and/or
(ii)natural justice and/or
(iii)refused to exercise a jurisdiction that he had and/or
(iv)exercised a jurisdiction that he did not have and/or
(v)erred at law and/or
(vi)there was error of law on the face of the record in convicting the plaintiff of an offence under s 49(1)(c) of the Road Safety Act 1986 (‘the Act’) by not ruling that:
(i)The said charge brought against the Plaintiff was defective in so far that it did not allege or disclose or adequately describe an identifiable offence or an offence known to the law; and/or
(ii)was otherwise bad; and/or
(iii)under the circumstances the said charge should stand dismissed.

(c)That the first named defendant, his Honour Acting Magistrate Brian Joseph Clifford erred in law in refusing to dismiss the charge under s 49(1)(c) of the Road Safety Act 1986 brought against the plaintiff.

The relief sought by the plaintiff is that the ruling and orders made by the Magistrate in relation to the charge under s 49(1)(c) of the RSA be quashed.

Validity of the charge
Legislative Scheme

As discussed, the plaintiff was charged with an offence under s 49(1)(c) of the RSA, which states that a person is guilty of an offence if he or she ‘refuses to undergo a preliminary breath test in accordance with section 53 when required under that section to do so’.

Section 53 provides relevantly, as follows:

(1) A police officer may at any time require –
(a)any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or
(b)the driver of a motor vehicle that has been required to stop, and remain stopped at a preliminary testing station under section 54(3); or
(c)any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or
(d)any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident—
to undergo a preliminary breath test by a prescribed device.

Pursuant to s 5 of the CPA, a criminal proceeding is commenced in the Magistrates’ Court by filing a charge-sheet in accordance with ss 6(1)(a) and 6(3), which require a charge-sheet in writing to be signed by the informant, filed with the Registrar of the Magistrates’ Court and to comply with schedule 1 of the CPA. Schedule 1 of the CPA sets out what must be included in a charge. A charge:

(a) must state the offence which the accused is alleged to have committed;

(b) must contain particulars necessary to give reasonable information as to the nature of the charge; and

(c) if a rule of law or a statute limits the particulars that are required to be given in the charge, it need not contain any more particulars than those required.

Clause 3 sets out that with respect to a statutory offence the statement of the offence is sufficient if it identifies the provision and describes the offence in the words of the provision creating the offence or in similar words.

Section 9 of the CPA states that a charge-sheet is not invalid by reason only of a failure to comply with Schedule 1.

The plaintiff’s submissions

The plaintiff argues that the charge as particularised in the charge-sheet is defective in that it fails to specify the source of the power under s 53(1) of the RSA. That is, it is submitted that the sub-section on which a requirement that a person undertake a breath test is based is an essential element of the offence, and must be particularised.

The plaintiff submits that s 53(1) of the RSA is ambulatory in nature. That is, that the offence under s 49(1)(c) of the RSA relies on the different sub-clauses in s 53(1), with regard to the exercise of the power.

The plaintiff submits that it is not sufficient in so far as the charges are concerned, to state that the accused ‘… did refuse to undergo such a breath test within three hours of being the driver of a motor vehicle involved in an accident’. The plaintiff submits that the charge as framed is equivocal and ambiguous and that while the charge sets out the temporal limit under s 53(4), this does not stand in substitution for the requirement of the sub-section in s 53(1), under which the power is asserted to have been exercised.

The plaintiff relies on the decision of Director of Public Prosecutions v Kypri[7] and a number of other cases which I will turn to.
[7]DPP v Kypri (2011) 33 VR 157, 160 (‘Kypri’s case’).

Kypri’s case concerned a charge under s 49(1)(e) of the RSA, which states that a person commits an offence if he or she ‘refuses to comply with a requirement made under s 55(1), (2), (2AA), (2A) or (9A)’. The charge-sheet stated that:

The defendant at Doncaster on 27 November 2005 having been required to furnish a sample of breath for analysis by a breath analysing instrument under s 55 of the [RSA] and for that purpose a requirement was made for him to accompany a member of the police force to a police station did refuse to comply with such requirement to accompany a member of the police force prior to three hours elapsing since the driving of a motor vehicle.

Referring to the decision of Bray CJ in Romeyko v Samuels,[8] Nettle JA (with whom Ashley and Tate JJA agreed) distinguished between a statute penalising two or more acts, in which two or more offences are created, and a statute penalising one act that may have different characteristics.[9] His Honour held that s 49(1)(e) falls into the former category in that it creates five separate offences of failing to comply with each of the sub-sections listed therein.[10]
[8]Romeyko v Samuels (1972) 2 SASR 529, 552.
[9]Kypri’s case’ (2011) 33 VR 157, 162–3; see also 178 (Tate JA).
[10]Ibid.

His Honour held that although the charge-sheet specified that the offence was one of failing to comply with a requirement to accompany a police officer to a police station for a breath test, this was a requirement that could be made under either s 55(1) or s 55(2). As such, the description in the charge-sheet was applicable to two separate offences and failed to specify with which of those offences the defendant was charged.

The plaintiff’s submissions refer specifically to the matter of Bell v Dawson,[11] in which the relevant charge was as follows:

The defendant at Altona North on 28/08/1998 after having been required to have a preliminary breath test in accordance with Section 53 of the Act, and the test in the opinion of the meber [sic] of the police force, in whose presence it was made indicated that his blood contained alcohol, and he was then further required to furnish a sample of breath for analysis by a breath analysing instrument pursuant to s 55(1) of the Act did refuse to accompany a member of the police force to a police station where a ample [sic] of breath was to be furnished prior to 3 hours elapsing from the driving of a motor vehicle.
refuse/failed to accompany.

[11]Bell v Dawson (2001) 4 VR 55.

In considering the validity of the charge-sheet, Charles JA (with whom Winneke P and Chernov JA agreed) stated that:

… s 49(1)(e) is in very different terms [from s 49(1)(f)], since the offence provided in that subsection arises only if a person ‘refuses to comply with a requirement’ made under various subsections of s 55. It is for this reason that the making of the relevant requirement is clearly a necessary ingredient of the offence.[12]

[12]Ibid 68.

In that case, it was held that the use of the word ‘refuse’ in the charge-sheet was sufficient to convey that a requirement had been made of the defendant to accompany a police officer and that it was this requirement that had been refused. The charge-sheet was able to be amended to reflect this.

In Walker v Director of Public Prosecutions,[13] the defendant was charged with having more than the prescribed amount of alcohol in her system, having consented to both a preliminary breath test and a breathalyser analysis at a police station. At trial, it was argued that the prosecution failed to prove that the defendant was ‘required’ to undergo a breathalyser analysis under s 55(1). In that case, it was held that there was no need to prove that a requirement had been made, as the accused had willingly provided a sample of her breath for analysis. In obiter Fullaghar J, with whom Brooking and McDonald JJ agreed, stated that in a refusal case, ‘a requirement was an element of the offence charged’.
[13]Walker v DPP (1993) 17 MVR 194.

In Director of Public Prosecutions v Greelish[14] the defendant was charged with refusing to comply with the requirement to accompany a police officer to a station for the purposes of breath analysis. The defendant relied on s 55(9) of the RSA, which states:

A person must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis if he or she satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against him or her.

[14]DPP v Greelish (2002) 4 VR 220.

In that case, the defendant was in the process of driving his daughter to her mother’s house, and did not want her to be removed from him by the police. He proceeded to walk for the remaining 500 metres before returning to the police to accompany them to the police station. It was at this point that he was informed that he would be charged with refusal. On appeal, it was held that s 55(1) of the RSA contains a number of requirements that may be the subject of a refusal offence under s 49(1)(e). One is the requirement to furnish a sample of breath for analysis, and another is the requirement to accompany the police officer to the police station. It was held that the defence of s 55(9) applied only to refusal to furnish a sample of breath for analysis, and was not available in this case.

In Clarke v Goodey[15] the defendant was charged with refusing to comply with a requirement to furnish a sample of breath for analysis by a breath analysing instrument, having undergone a preliminary breath test which indicated that his blood contained alcohol. At trial, the prosecution was given leave to amend the charge to substitute a reference to s 55(2A) with a reference to s 55(1), and the defendant was convicted.
[15]Clarke v Goodey (Unreported, Victorian Court of Appeal, Buchanan JA and Batt J, 23 August 2002).

On appeal it was held that ss 55(1) and 55(2A) contained separate offences and that the amendment of the charge had effectively substituted a new offence. Given that the amendment had been made outside of the limitation period, the conviction was overturned.

The plaintiff submits that the reasoning applied in Kypri’s case is applicable to this case, in that there are four different possible offences under s 53(1) in relation to refusal to undergo a preliminary breath test. The plaintiff submits that as in Kypri’s case, in order to identify the act which comprises the offence, it was necessary to identify the requirement. In Kypri’s case, it was necessary to specify the sub-section relevant to s 55 and in this case under s 53(1). Accordingly, the plaintiff submits that there was an essential element missing from the charge.

The plaintiff submits that in viewing the charges particularised in the charge-sheet the relevant sub-section of s 53(1) of the RSA said to have been exercised in making the requirement to undergo a preliminary breath test was not specified. The charge merely referred to s 53(1) and did not specify which one of the sub-sections under 53(1)(a), (b), (c) or (d) is claimed to be the base upon which the power is lawfully exercised. The plaintiff submits that following the authority of Kypri’s case, the current charge as originally framed was fatally flawed.

The third defendant’s submissions

The third defendant submits that whether a charge is properly framed and whether amendments should be allowed will depend on the nature of the charge, the complexity of legislation considered and the extent to which the charge is defective.[16]
[16]Glenister v Magistrates’ Court of Victoria & Anor [2014] VSC 265, [64] (‘Glenister’).

The third defendant relies on the judgment of Ginnane J in Glenister v Magistrates’ Court of Victoria[17] (‘Glenister’), in which his Honour considered in detail the requirements for a charge to be valid under the CPA. In his summary of conclusions on these requirements, Ginnane J stated as follows:

While the CPA uses language from the common law principles governing the validity of criminal charges, it is necessary to apply the words of the CPA in determining the validity of the … charges.
Under the CPA, the charge-sheet must state the offence and contain the particulars that are necessary to give reasonable information as to the nature of the charge. Although there is no set formula, the particulars required will usually include the time, place and manner of the acts charged and other particulars of the act, matter or thing alleged by the informant as the foundation of the charge.[18]

[17]Ibid.

[18]Ibid [64]–[65].

The third defendant submits that the elements of the charge and all the relevant particulars are included in the charge as originally framed.

The third defendant submits that the elements of the offence under s 49(1)(c) of the RSA are that the accused:

(a) was required to undergo a breath test under s 53; and
(b) refused to undergo a preliminary breath test.

The third defendant submits that the facts or elements which need to be proved in this case are:

(a) a requirement to undergo a preliminary breath test;
(b) that requirement was made in accordance with s 53 in that:
(i) it was made by a member of the police force;
(ii)who believed on reasonable grounds that within the preceding three hours the accused had been driving or been in charge of a motor vehicle that was involved in an accident;
(iii)the requirement was to undergo a preliminary breath test by a prescribed device;
(iv)the requirement was made within three hours of the time the accused last drove the motor vehicle.

(c) the accused refused to undergo the preliminary breath test.[19]

[19]Third defendant’s written submissions dated 18 February 2015 [10].

The third defendant submits that the last part of the wording in the charge ‘within three hours of being the driver of a motor vehicle involved in an accident’ makes it clear to a ‘reasonable defendant’ or a ‘reasonable reader’ of the charge, that it must refer to s 53(1)(c) of the RSA. The third defendant submits that by simply looking at the wording of sub-section 53(1)(a) to (d) a reasonable defendant is able to determine that this charge relates to s 53(1)(c). That is, because s 53(1)(a) does not refer to an accident; and s 53(1)(b) refers to being a driver required to stop and remain stopped at a preliminary breath testing station. In this case there is a reference to a driver of a motor vehicle that is a driver involved in an ‘accident’ rather than having been required at a preliminary breath testing station; the critical criteria for s 53(1)(c) is that the person in the last three preceding hours has ‘driven’ or been in charge of a motor vehicle, when it was involved in an accident; and s 53(1)(d) refers to ‘any person who he or she believes on reasonable grounds was within the last three preceding hours an occupant of a motor vehicle when it was involved in an accident’. The charge in this case, is directed to the driver of a motor vehicle.

Accordingly, the third defendant submits that the only sub-paragraph the charge as originally framed could relate to on a plain and simple reading is s 53(1)(c).

The third defendant submits that a reasonable defendant, who is not necessarily legally trained, understands from the charge that:

1. The accused was required to undergo a preliminary breath test;
2. The accused refused to undergo a preliminary breath test;
3.When the request to undergo a preliminary breath test was made, the accused within the last three preceding hours had driven or had been in charge of a motor vehicle which was involved in an accident.

The third defendant submits that Kypri’s case can be distinguished in that it was concerned with s 49(1)(e) which refers to s 51(1)(2), (2AA), (2A) or (9A).

In Kypri’s case and the other cases which considered s 55 of the RSA, the accused was required to accompany a police officer to the police station. It is not clear, however, unless there is a specific reference to the above sub-sections of s 55 whether the accused has undergone a preliminary breath test, whether the accused can be required to blow into a breath analysis unit, whether the accused can be required to accompany a police officer to a police station; or whether the accused can be required to undergo a further sample.

The third defendant submits that unlike s 49(1)(e), the charge under s 49(1)(c) creates only one offence, refusing to undergo a preliminary breath test. The different aspects of s 53(1) do not create different offences, only different circumstances in which a police officer has the power to request that a person undergo a preliminary breath test. In contrast, sub-ss (1), (2), (2AA), (2A) and (9A) of s 55 create a number of different types of requirements:

(a)to furnish a sample of breath for analysis by a breath analysing instrument; or
(b)to accompany a police officer to a place or vehicle for the purpose of providing such a sample or breath; or
(c)to remain at such a place or vehicle until a sample is provided in the required time; or
(d)to provide a further sample of breath for analysis; or
(e)to permit a blood sample to be taken by a medical practitioner.[20]

The third defendant submits that the particulars to be included in a charge-sheet under s 49(1)(e) must make it clear which requirements were made, and which the driver failed to comply with. The third defendant submits that in Kypri’s case although the charge set out that the requirement was made to the driver to accompany a member of the police force to a police station to provide a breath sample, such a requirement could have been made under sub-ss (1) or (2).
Decision

[20]Third defendant’s written submissions dated 18 February 2015 [14] and [15].

Looking at the reasoning in each of the cases relied upon by the plaintiff, it would seem clear that the facts of this case are to be distinguished from those dealing with a charge under s 49(1)(e). First, there is an apparent difference between s 49(1)(c) and s 49(1)(e) in that the latter lists multiple sub-sections within s 55. The effect of this listing of sub-sections has been held in multiple cases, including those discussed above, to create multiple offences: one for each sub-section listed.

The decision in Greelish appears to take this contention one step further. In that case, it was held that s 49(1)(e) creates two separate offences with respect to s 55(1). However, it is important to note that these two offences are created, not on the basis of ss 55(1)(a) and 55(1)(b), but on the basis of the two different ‘requirements’ that can be made. That is, regardless of which criterion is the basis for making a requirement under s 55(1), it is an offence to refuse to comply with the requirement to furnish a sample of breath, and it is a separate offence to refuse to comply with a requirement to accompany a police officer to a police station for this purpose.

The reasoning in Greelish is most important when looking at the facts of the case at hand. In s 49(1)(c), there is no reference to the various sub-sections of s 53. Rather, it is an offence to ‘refuse to undergo a preliminary breath test in accordance with s 53 when required under that section to do so’. Looking at the wording of the various sub-sections in s 53, there are only two separate requirements that can be made: a requirement to undergo a preliminary breath test under s 53(1) and a requirement to undergo a preliminary breath test under s 53(2).

As such, s 49(1)(c) can only create two separate offences: a refusal to undergo a preliminary breath test in accordance with s 53 when required to do so under s 53(1), and a refusal to undergo a preliminary breath test in accordance with s 53 when required to do so under s 53(2). Even if it is accepted on the basis of the cases referred to above that the requirement is an essential element of the offence, there is only one requirement of s 53(1), a requirement to undergo a preliminary breath test. It does not follow that the basis on which the requirement is made is an essential element of the offence.

In Kypri’s case, Nettle JA referred to the decision in Bell v Dawson,[21] stating that this decision makes it clear that ‘s 49(1)(f) creates but one offence (of having a blood alcohol concentration greater than the prescribed percentage) albeit the offence may be committed in a number of different circumstances’.[22] This statement appears to apply equally with s 53(1), implying that it is not necessary to state the circumstances in which a requirement was made, only that it was made under s 53(1).
[21]Bell v Dawson (2001) 4 VR 55.
[22]Kypri’s case (2011) 33 VR 157, 162.

The reasoning in cases such as Greelish appears to strengthen the contention that the charge-sheet as originally drafted met the requirements of cl 3(2) of Schedule 1 to the CPA. That is, given that s 49(1)(c) creates only two offences, one of refusing to comply with the requirement under s 53(1) and one of refusing to comply with the requirement under s 53(2), referring to s 53(1) is sufficient to identify the provision creating the offence in accordance with cl 3(2)(a). Furthermore, as pointed out in the third defendant’s submissions, the charge-sheet utilised words similar to those in s 53(1), as required by cl 3(2)(b).

In the alternative, even if the basis on which the requirement was made of the plaintiff were to be considered an essential element of the offence and therefore s 49(1)(c) creates four separate offences, it would seem that sufficient information was given for him to understand with which offence he was being charged. The charge-sheet explicitly refers to the requirement under s 53(1), and states that the plaintiff ‘did refuse to undergo such breath test within three hours of being the driver of a motor vehicle involved in an accident’. Section 53(1)(c) is the only sub-section that refers to being the driver of a motor vehicle that was in an accident within the last three hours.

In this respect, the plaintiff submits that the words ‘did refuse to undergo such breath test within three hours of being the driver of a motor vehicle involved in an accident’ could refer to s 53(4) of the RSA, which allows a person to refuse to undergo a preliminary breath test if more than three hours have passed since they last occupied, drove or were in charge of a motor vehicle. This submission appears to miss the fact that the charge-sheet explicitly refers to a refusal to undergo a preliminary breath test within three hours of ‘being the driver of a motor vehicle and involved in an accident’. Section 53(1)(c) is the only sub-section of s 53 that refers to both being the driver of a motor vehicle and the fact that the vehicle has been in an accident.

In Kypri’s case, Nettle JA made the following comments:

A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge and their context. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid.[23]

[23]Kypri’s case (2011) 33 VR 157, 163.

I consider that the charge-sheet in this case meets such a description and, as such, should not be considered to have been invalid.

Amendment of the charge

In the event that the charge is considered to be invalid, the third defendant submits that it was acceptable for the Magistrate to amend the charge-sheet to insert sub-s (c) so as to make the charge valid for the purpose of the hearing.

The plaintiff submits that the amendment allowed by the Magistrate was a breach of ss 8(3) and (4) of the CPA.

Legislative scheme

The provisions that are relevant to the amendment of a charge-sheet are contained within the CPA; in particular, ss 7 – 8, which provide as follows:

7 Time limits for filing a charge-sheet
(1)A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where—
(a)otherwise provided by or under any other Act; or
(b)the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.

8 Order for amendment of charge-sheet
(1)The Magistrates’ Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
…
(3)An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
(4)If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if—
(a)the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and
(b)the amendment does not amount to the commencement of a proceeding for a new offence; and
(c)the amendment will not cause injustice to the accused.

Given that the amendment to the charge-sheet in this case was made by the Magistrate after the expiration of 12 months from the date on which the offence was alleged to have occurred, the amendment would have to comply with ss 8(3) and 8(4) of the CPA to be valid.

The plaintiff in this case effectively submits that, given that the charge-sheet was a nullity prior to the amendment, the amendment should not have been allowed by the Magistrate as the limitation period had already expired at the time of the amendment. In support of this contention, the plaintiff cites numerous authorities discussing what is required in order for a charge to be amended at common law and under a number of other legislative regimes. However, the most authoritative decision in this respect is Glenister v The Magistrates’ Court of Victoria & Anor,[24] as it was the only case cited that specifically considers the regime for amendment under s 8(4) of the CPA.

Glenister

[24]Glenister [2014] VSC 265.

In Glenister, as noted above, Ginnane J conducted a thorough analysis of the common law requirement for a charge-sheet to be valid, concluding that the CPA largely adopted the common law, but must nevertheless be interpreted in context and in accordance with the actual wording used. The requirements for validity under the CPA are discussed above.

Having reached a conclusion as to the validity of the various charges under consideration in Glenister, Ginnane J then went on to consider whether these charges were capable of amendment under s 8(4), considering primarily the requirement of s 8(4)(a). In this respect, his Honour remarked:

I do not accept the [plaintiff’s] submission that the Magistrate erroneously drew a distinction between the words ‘reasonable information as to the nature of the charge’ in clause 1(b) of Schedule 1, and ‘sufficiently disclose the nature of the offence’ in s 8(4)(a).
In my opinion, the requirement of s 8(4)(a), of ‘sufficiently disclosed the nature of the offence’, directs attention to the requirements of clause 1 of Schedule 1 of the CPA, which, in turn, requires a statement of the offence and particulars giving reasonable information as to the nature of the charge. A statement of the offence must contain both of those requirements. If they are both present, the charge sheet before the amendment sufficiently discloses the nature of the offence.[25]
[25]Ibid [168]–[169].

The third defendant’s submissions

In relation to the question of amendment, the third defendant submits that if any error in the words of a charge that led to it being irregular or disclosing no offence meant that the charge was therefore unable to be amended, the power to amend under s 8(4) would be redundant. Thus, it is argued that there must be some errors that are fatal to a charge as originally drafted but can nonetheless be cured by amendment in circumstances where the offence is nonetheless sufficient to disclose. In this respect, the third defendant relies on a number of authorities that pre-date the CPA.

In Ciorra v Cole,[26] Redlich J (as his Honour then was) considered the circumstances in which a charge may be amended both within and outside a statutory limitation period, stating as follows:

The power to amend within the limitation period may be utilised by a magistrate where the defendant is able to identify the nature of the charge brought against him and where no injustice will be brought about by the making of the amendment. The degree to which the charge departs from the requirement that the charge identify the nature of the offence charged will be a critical factor in deciding whether an amendment should be permitted.
To amend a charge where it would result in the formulation of an offence different to the offence charged where the time for laying of a charge has expired has often been viewed as an improper exercise of the power. Ormiston J in Woolworths (Victoria) Ltd left open the question as to whether there was a discretion to allow an amendment after the expiration of the time period. An amendment may be permitted outside the twelve-month period where the offence remained the same notwithstanding the amendment.[27]

[26]Ciorra v Cole (2004) 150 A Crim R 189.

[27]Ibid 553–4 (citations omitted).

Having discussed a number of cases in which the charge failed to refer to the relevant Act or subordinate legislation, his Honour went on to say that:

The authorities to which I have referred have in common that, where the details of the charge are sufficient in that the defendant is not left uncertain as to the nature of the offence charged, an amendment to substitute the correct statutory provision will be permitted where no injustice would otherwise be done to the defendant. That is to say an amendment could be made where the charge sufficiently discloses the nature of the offence so that it can be identified as an offence known to the law, notwithstanding that the charge either referred to the wrong provision or referred to none. In such cases the description of the offence sufficiently apprised the defendant of the nature of the offence.
If, upon a reasonable reading of the description of the offence, an offence known to the law is disclosed which enables the defendant to identify the nature of the charge, the exercise of the discretion to amend would not have miscarried to correct an error as to the relevant statutory provision …[28]

[28]Ibid 560 (citations omitted).

The third defendant further relies on a passage in the judgment of Nettle JA in Kypri, in which his Honour stated that:

Counsel for the respondent submitted that the High Court’s decision in John L, and the decision in Ex parte Lovell (on which to some extent the decision in John L was based) determined that a charge which omits an essential element is essentially invalid and cannot be amended. That is incorrect. As Redlich J explained in Ciorra v Cole, decisions such as John L and Ex parte Lovell were made under statutory regimes which did not include a statutory power of amendment like s 50 [of the Magistrates’ Court Act]. Contrary to the respondent’s contentions, the power to amend under s 50 is available where a charge discloses no offence.[29]

[29]Kypri’s case (2011) 33 VR 157, 165.

Decision

With the exception of the statement of Nettle JA in Kypri, the authorities relied on by the third defendant are consistent with Ginnane J’s conclusions in Glenister. Generally, if a charge is sufficient to disclose the offence itself and the nature of the charge, s 9 of the CPA operates to make the charge itself valid notwithstanding any technical error or omission in the drafting of the charge-sheet. As such, any charge-sheet that meets the criteria for amendment after the expiry of the limitation period will also satisfy the test for validity under the CPA.

On the other hand, the statement of Nettle JA in Kypri appears to directly contradict this conclusion, stating that amendment may be allowed even where the charge discloses no offence. However, the passage cited falls under the heading ‘Amendments’ in his Honour’s judgment in Kypri, and is immediately followed by a section entitled ‘Amendment out of time’. In the opening paragraph of this next section, his Honour went on to say:

One difficulty in this case which did not arise in Ciorra is that the 12 month limitation period set by s 26(4) of the Magistrates’ Court Act expired very shortly after the charge was instituted and so well before the charge came on to be heard. That poses a question of when and in what circumstances a charge which fails to allege an essential element of an offence may be amended after expiration of the limitation period.[30]

[30]Ibid 165.

It is clear from this paragraph that his Honour did not intend his conclusions relating to the requirements for amendment espoused in Ciorra to apply in the context of amendments that are made after the expiry of the limitation period. Rather, his Honour went on to outline the rules for amendment after the limitation period has ended in the following terms:

The rule is that an amendment which clarifies a charge is permissible and an amendment which goes further than that is not. So, an amendment may be permitted out of time when, despite the amendment, the offence charged stays the same. But an amendment will not be allowed out of time if it would result in the formulation of a new and different charge. The latter is treated as an impermissible attempt to avoid the limitation period.
A charge which lacks an essential element of the alleged offence is defective and, at common law, may be described as a nullity. If, however, the true nature of the offence is apparent from the face of the charge, and the defendant has not been misled or otherwise prejudiced by the omission, the charge may be amended under s 50 (even out of time) to include the missing element; on the basis that such an amendment does no more than clarify what is already apparent from the face of the charge.[31]

[31]Ibid 165 (citations omitted) (emphasis added).

These passages clearly contradict his Honour’s prior statement that a charge may be amended even in circumstances where it discloses no offence. As such, it is plain that his Honour intended the prior statement to apply only to amendment before the expiry of the limitation period. Looking at the second paragraph, his Honour can be seen to distinguish between the position of common law and the position under s 50 of the Magistrates’ Court Act 1989 (‘MCA’), that is, while a charge might be seen as technically a nullity at common law, under the MCA it is valid and capable of amendment if subsequent requirements are met.

Ginnane J’s conclusions on the operation of s 8(4) of the CPA are further supported by an analysis of s 50(1) of the MCA, which, as shown above, was a legislative precursor to s 8 of the CPA. It stated as follows:

50 Power to amend where there is a defect or error
(1)On the hearing of a proceeding the Court must not allow an objection to a warrant on account of any defect or error in it in substance or in form or for any variance between it and the evidence presented in the proceeding but the Court may amend the warrant to correct the defect or error.

This section appears to be an amalgamation of the current ss 8 – 9 of the CPA, which is illuminating in that it demonstrates that there is no real difference between the test for validity and the test for amendment, although the threshold for each may vary, depending on whether the limitation period has passed. That is, prior to the expiry of the limitation period, the test in Ciorra would be applied and, if the charge met these requirements, it would be valid and could be amended.

On the other hand, if the limitation period had expired, the test set in Kypri would apply. If the charge-sheet as originally drafted met the requirements laid out in Kypri, then it would be valid and could be amended, but otherwise the charge would be invalid and could not be cured by amendment.

Conclusion

On the basis of the above discussion, the question as to whether amendment is permitted in this case appears to be purely academic. The third defendant’s submission that an invalid charge may be amended beyond the expiry of the limitation period is based on a misreading of the authorities as they stood prior to the introduction of the CPA. The test for amendment laid down by Ginnane J in Glenister should be accepted, to the effect that the only charges that may be amended after expiry of the relevant limitation period are those that were validly drafted in the original form.

Given that the charge-sheet in this case appears to comply with the requirements of cl 1 of Schedule 1 to the CPA, it should be held to be valid as originally framed. Thus, the Magistrate’s decision to amend the charge-sheet after expiry of the limitation period should be upheld. Accordingly, the plaintiff’s Magistrates’ Court review is dismissed.

Proceeding No S CI 2013 01864
Background

The matter of Walters v County Court of Victoria (S CI 2013 01864) involved an appeal from the Magistrates’ Court of Victoria, in which Walters had been convicted and sentenced under the RSA. The County Court reduced the sentence on appeal, and Walters is now seeking a judicial review of the decision, arguing that the County Court judge erred in deciding the matter on the basis of the charge as amended by the Magistrate.

Legislative scheme

Appeals from the Magistrates’ Court to the County Court are governed by the Criminal Procedure Act 2009 (‘CPA’). Section 254 of the CPA provides that:

A person convicted of an offence by the Magistrates’ Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against –
(a)the conviction and sentence imposed by the court; or
(b)the sentence alone.

The term ‘conviction’ is defined as including ‘a finding of guilt by a court, whether or not a conviction is recorded’.[32] The term ‘sentence’ is defined as including ‘the recording of a conviction’ as well as orders under certain provisions of the RSA.[33] The procedure applicable to appeal under s 254 of the CPA is governed by s 256, which provides as follows:
[32]CPA s 3 (definition of ‘conviction’).
[33]Ibid (definition of ‘sentence’ (a) and (d)).

256 Determination of appeal
(1)An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates’ Court.
(2)On the hearing of an appeal under section 254, the County Court –
(a)must set aside the sentence of the Magistrates’ Court; and
(b)may impose any sentence which the County Court considers appropriate which the Magistrates’ Court imposed or could have imposed; and
(c)may exercise any powers which the Magistrates’ Court exercised or could have exercised.

…
(5)A sentence imposed under sub-section (2) is for all purposes to be regarded as a sentence of the County Court.

Also relevant to the question of whether the County Court proceedings should have proceeded on the basis of the charge as amended by the Magistrate is s 8(2) of the CPA, which states that:

If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.

Equivalent and contrasting provisions
Appeal provisions

Prior to the introduction of the CPA, the equivalents of the current provisions were contained in the MCA.[34] The relevant provisions relating to the appeals to the County Court, which were contained in Division 4 of Part 4, were as follows:
[34]Version 144, incorporating amendments as at 11 December 2008.

83 Appeal to County Court
(1)A person may appeal to the County Court against any sentence or order made against that person by the Court in a criminal proceeding conducted in accordance with Schedule 2.

…
85Appeal operates as a re-hearing
An appeal under section 83 or 84 must be conducted as a re-hearing and the appellant is not bound by the plea entered in the Magistrates’ Court.

86 Power of the County Court on appeal
(1)On the hearing of an appeal under section 83 or 84, the County Court –
(a) must set aside the order of the Magistrates’ Court; and
(b)may make any order which the County Court thinks just which the Magistrates’ Court made or could have made; and
(c)may exercise any powers which the Magistrates’ Court exercised or could have exercised …

In NSW, the equivalents of ss 254 and 256 are contained in the Crimes (Appeal and Review) Act 2001 (NSW) (‘NSW Appeal Act’), with the relevant provisions providing as follows:

11 Appeal as of right
(1)Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both).

…
17Appeals against sentence to be by way of rehearing on the evidence
An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.

18 Appeals against conviction to be by way of rehearing of evidence
(1)An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.

…
20Determination of appeals
(1)The District Court may determine an appeal against conviction:
(a)by setting aside the conviction; or
(b)by dismissing the appeal; or
(c)in the case of an appeal made with leave under s 12(1) by setting aside the conviction and remitting the matter to the original Local Court for a redetermination in accordance with any directions of the District Court.

(2)The District Court may determine an appeal against sentence:
(a)by setting aside the sentence; or
(b)by varying the sentence; or
(c)by dismissing the appeal.

Amendments to the charge-sheet

Prior to the introduction of s 8(2) of the CPA, there was no requirement that an amended charge-sheet be treated as having been amended for the purposes of all proceedings connected with the hearing in the Magistrates’ Court.

There is, however, an equivalent of s 8(2) of the CPA in NSW: s 22 of the Criminal Procedure Act 1986 (NSW) (‘the NSW CPA’) which states as follows:

22 Amended indictment
(1)If any indictment is amended, a note of the order for amendment is to be endorsed on the indictment, and the indictment in its amended form is to be treated as the indictment for the purposes of the trial and all proceedings in connection with or consequent of the trial.
(2)Any verdict or judgment given after the amendment of an indictment is to have the same force and effect as if the indictment had originally been in its amended form.
(3)If it is necessary at any time to draw up a formal record of an indictment, the record may be drawn up in the words and the form of the amended indictment, without notice of the fact of the amendment.

Section 8(2) can also be contrasted with other legislative provisions that deal with ‘connected proceedings’. For example, s 1338B of the Corporations Act 2001 (Cth) draws a distinction between an appeal and a proceeding connected with a hearing, as follows:

1338B Jurisdiction of courts
(1)Subjection to this section, the several courts of each State, the Capital Territory and the Northern Territory exercising jurisdiction:
…
(b)with respect to the hearing and determination of:
(i)proceedings connected with; or
(ii)appeals arising out of; or
(iii)appeals arising out of proceedings connected with –
any such trial of conviction …

It is important to note that this provision, while it utilises the phrase ‘proceedings connected with’, does not incorporate appeals.

Relevant case law

Due to the relatively recent introduction of the relevant provisions, there are few authorities directly on point. The following cases consider the application of equivalent versions of the existing provisions.

Sasterawan v Morris[35]

[35]Sasterawan v Morris (2007) 69 NSWLR 547.

This proceeding concerned an appeal from the Local Court to the District Court in NSW. In accordance with s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW), the appeal was to be by way of ‘rehearing’. On appeal in the District Court, the charge was amended so as to limit its scope, and the appeal was dismissed. The case came before the Court of Criminal Appeal by way of a case stated pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW).

One of the three questions before the Court of Criminal Appeal was whether the charges as prosecuted before the District Court were different from those in which the defendant was found guilty in the Local Court and, if so, whether the District Court had jurisdiction to hear the different charges. In discussing this issue, Basten JA (with whom Grove and Hidden JJ agreed) stated as follows:

In some circumstances, the term ‘appeal’ is used in statute where in fact the original (rather than the appellate) jurisdiction of a court has been invoked. However, there is no reason to suppose that the use of the term ‘appeal’ in s 11(1) of the Crimes (Appeal and Review) Act, as explained in ss 18 and s 20, does other than invoke the appellate jurisdiction of the District Court. Accordingly, the Court’s jurisdiction is, broadly speaking, limited to a consideration of the charge laid in the Local Court. However, that does not mean that there may not be variations in the evidence presented in the District Court (subject to the understanding that it is an appeal by way of rehearing and not a fresh trial), nor that the powers of amendment which were available to the Local Court are not available in the District Court: see, eg, Criminal Procedure Act, ss 17, 20, 21 and 22. Nor does it mean that the District Court cannot take appropriate steps to ensure procedural fairness to the defendant, which may require the giving of particulars which were not provided in the court below or as circumscription of the scope of the charge laid, as occurred in the present case, perhaps for the first time.[36]

Mr and Mrs X v Secretary to the Department of Human Services[37]

[36]Ibid 556.

[37]Mr and Mrs X v Secretary to the Department of Human Services [2003] VSC 140.

In this case, Gillard J described the appeals process under s 83 of the MCA in the following terms:

The appeal court is not concerned with the reasons given by the body at first instance for they are irrelevant, and it is not concerned as to whether an error was made or not by the body at first instance or whether the decision was wrong. It is not concerned as to whether any error of law occurred at first instance. On the appeal, the party who brought the proceedings below presents his case, first, the appeal is determined from the evidence called on appeal, the parties call whatever relevant evidence each considers appropriate and the court determines the appeal without regard to the reasons of the magistrate. The parties may call other evidence, they are not bound to call evidence which was called on the first hearing and the court on appeal substitutes its decision based on the facts proven and the law as at the date of the appeal.[38]

Neill v County Court of Victoria[39]

[38]Ibid [60].

[39]Neill v County Court of Victoria (2004) 40 MVR 265.

In this case, Redlich J (as his Honour then was) discussed the nature of an appeal from the Magistrates’ Court to the County Court under the old regime; that is, ss 83–86 of the MCA. In discussing the procedure and nature of the appeal, his Honour stated that –

The right of appeal to the County Court from a sentencing order of the Magistrates’ Court is created by statute. The true nature of the appeal depends upon the terms of the statute confirming the right … The nature of such appeals and the powers of the County Court are to be determined by reference to the statutory regime set out within subdivision 1 of Division 4 of Part 4 of the Magistrates’ Court Act 1989. Section 85 requires the appeal to be conducted as a re-hearing. It is settled that the nature of such an appeal is in the form of a hearing de novo …[40]

[40]Ibid 270–1 (citations omitted).

His Honour went on to say in respect of another case:

It was not for the judge to consider whether the Magistrate made an error in allowing the amendment but whether, if the prosecution sought to amend the information on the hearing of the appeal, it should be allowed to do so. The appeal was a re-hearing of the offence as expressed in the information at the time of the commencement of the summary hearing before the Magistrate. It was irrelevant on the County Court appeal that the information had been amended at the commencement of or during the Magistrates’ Court hearing. If the prosecution wishes to amend an information, it may do so on the hearing of the appeal.

Candolim Pty Ltd v Garrett[41]

[41]Candolim Pty Ltd v Garrett [2005] VSC 270.

In this case, Hargrave J stated explicitly that ‘[t]he effect of ss 85 and 86 of the MCA is that everything which happened in the Magistrates’ Court is to be disregarded on the hearing of the County Court appeal’.[42] His Honour went on to say as follows:

Accordingly, the charges that were before the County Court on the hearing of the appeals by the plaintiff were the charges stated on the charge sheets. The County Court had power, either on application or on its own motion to amend the charges stated on the charge sheets if it thought it appropriate to do so. However, the County Court did not have power to proceed to hear and determine the charges as amended by the Magistrate.[43]

[42]Ibid [30].

[43]Ibid [33].

Ultimately, his Honour considered that the failure to disregard the Magistrate’s amendments constituted a jurisdictional error by the County Court judge, stating that –

I find that the County Court did fall into jurisdictional error. Although the County Court clearly had jurisdiction to hear and determine the appeals, the mistake which I have found or was made by the County Court judge amounted, in my view, to a misapprehension of the nature of her Honour’s functions and powers on the hearing of the appeals. This misapprehension was constituted by her Honour failing to ignore, or disregard, the amendments of the charges made by the Magistrate, and then proceeding to hear and determine those amended charges. This was contrary to ss 85 and 86(1)(a) of the Magistrates’ Court Act. Those provisions obliged her Honour to set aside all of the orders of the Magistrates’ Court, including the orders for amendment of the charges, and to start again on the basis of the original charges.

The plaintiff’s submissions

The plaintiff submits that the charge on appeal should be heard afresh as it was expressed in the information at the time of the commencement of the summary hearing before the Magistrate. In this case the plaintiff submits that if the charges were amended in the Magistrates’ Court, that amendment will not follow into the County Court.

The plaintiff submits that s 8(2) of the CPA on its plain reading states that once a charge is amended by an order under s 8, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing or proceedings connected with the hearing. It is submitted that given the charge in this case was amended in the Magistrates’ Court, the issue which falls for consideration concerns whether s 8(2) requires a charge amended in the court below to be treated and not appealed to the County Court as a charge in its amended form, rather than the form expressed in the charge prior to amendment pursuant to the decision of Neill and Candolim.

The plaintiff submits that on its proper reading, s 8(3) only refers to the Magistrates’ Court proceeding, and therefore the County Court judge fell into error in ruling that the rehearing concerned the amended charge on appeal.

The plaintiff submits the term ‘all proceedings connected with the hearing’ can only relate to hearings in the Magistrates’ Court which are connected to the trial or sentence hearing in that jurisdiction; which would include, for example, a bail hearing.

The plaintiff submits that there are a number of mitigating matters against the construction of s 8(2) adopted by the County Court judge:

(a)To read s 8(2) as bringing up an amended charge on appeal to the County Court would be to limit the full extent of the power to conduct a hearing de novo, which is the whole point of the appeal;
(b)If the County Court had to treat a charge coming up on appeal to the County Court from the Magistrates’ Court as an amended charge, it would mean that an accused person who was aggrieved by the decision of a Magistrate with respect to the said amendment, would be shut out of an appeal to the County Court on that point, because he or she could only appeal to the Supreme Court on a question of law pursuant to s 272 of the CPA;
(c)Pursuant to s 273 of the CPA, a person who appeals to the Supreme Court on a question of law is deemed to have abandoned any right to appeal to the County Court on that proceeding. This would effectively shut the appellate [sic] out of the County Court in circumstances where a rehearing might be appropriate on other grounds, but as a result, the appellant is forced to choose the appellate jurisdiction of the Supreme Court;

(d)It also means that if a Magistrate is arguably wrong at law in allowing an amendment, the only jurisdiction capable of providing relief by way of appeal is to the Supreme Court;
(e)Once a Magistrate sentences the person, the magistrate is functus officio. Thus, at the time of sentencing, there are no proceedings connected to the hearing. This is so because they are spent. An appeal to the County Court is not connected to the hearing, because the hearing is over. Any appeal to the County Court thereafter is a rehearing pursuant to the powers granted under s 254. Pursuant to s 256 of the CPA, the first act of a County Court Judge in hearing an appeal is to set aside the sentence recorded in the Magistrates’ Court and by doing so, the slate is wiped clean so to speak;
(f)Further to the above s 256(2)(c) of the CPA grants power to a County Court Judge to exercise any power which the Magistrates’ Court exercised or could have exercised, which suggests a broad power granted which would contain in its application, any power that might have been exercised by a Magistrate, including the power to amend a charge on a rehearing. It would be rather curious to limit the power of a County Court Judge in appeal in a way for it to be suggested by s 8(2) in the instant case;
(g)Given that an appellate [sic] to the County Court is not even bound by his or her plea in the Magistrates’ Court, it would again seem curious to read, s 8(2) in any way limiting the power of the County Court on rehearing with respect to a charge amended in the Court below;
(h)Finally, if s 8(2) was to be read in any limiting way with respect to an appeal to the County Court, in a penal statute or a statute which administers the procedure concerning penal statutes, such limitation should be clear and unambiguous.[44]
[44]Plaintiff’s written submissions dated 29 October 2014 [6].

The second defendant’s submissions

The second defendant submits that whilst the procedure before the commencement of the CPA was that any amendments to charges made in the proceedings in the Magistrates’ Court were not carried over to the appeal hearing, the changes brought about by the CPA have altered the law in respect to this type of appeal. That is, that the MCA provision relating to amendment, s 50, contained nothing analogous to s 8(2) of the CPA; and the provisions of the MCA which govern the conduct of the appeal required the County Court judge hearing the appeal to set aside the order of the Magistrates’ Court. Hargrave J in Candolim, held that this included all orders made, including the amendments.[45]
[45]Candolim Pty Ltd v Garrett [2005] VSC 270, [30]–[33], [48].

The second defendant submits that even though s 256(2) of the CPA is in very similar terms to s 86(1) of the MCA, the MCA refers to the setting aside of the sentence of the Magistrates’ Court and the ‘imposition of any sentence which the County Court considers appropriate’. It is submitted that the change in language in s 256(2) from ‘order’ to ‘sentence’, in combination with the phrase ‘for the purpose of the hearing and all proceedings connected with the hearing’ in s 8(2) must mean that the intention of the legislature was that any orders made amending the charge be carried over to the hearing of the County Court appeal.

The second defendant submits that the plaintiff’s submission that s 8(2) only applies to the proceedings in the Magistrates’ Court does not withstand scrutiny in that:

(i)If that were so, there would be no need to include in this section ‘for … all proceedings connected with the hearing’. If an amendment were made in the Magistrates’ Court it would continue to be in force, unless the further order was made revoking the amendment. If the plaintiff’s contention is correct then the words ‘for … all proceedings connected with the hearing’ would have no work to do;
(ii)The definition in s 3 of ‘proceeding’ is inclusive. It does not require a reading of s 8(2) which limits ‘all proceedings connected with the hearing’ to proceedings in the Magistrates’ Court;
(iii)A County Court appeal under s 254 is clearly a proceeding connected with the hearing of the charges in the Magistrates’ Court. Such an appeal only arises when charges have been determined in the Magistrates’ Court, and so it arises only in connection to such a hearing;

(iv)Whilst a person aggrieved by the amendment by a Magistrate is shut out from an appeal pursuant to s 272 of the CPA if he/she chooses to pursue an appeal under s 254 of the CPA, he may, nevertheless still pursue a proceeding for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005. Indeed, that is what the plaintiff has done in the related proceedings to this, S CI 2013 01863. The prohibition in s 273 applies only to appeals under that Part of the CPA.[46]

[46]Second defendant’s written submissions dated 18 February 2015 [10].

The second defendant submits that the learned judge did not err in ruling that by reason of s 8(2) of the CPA, the amendment made by the Magistrate continued to operate, in the proceeding before the County Court.

Effect of amendments

It does not appear that the intent of s 8(2) was to have the effect that the charge-sheet was to be treated as having been filed in its amended form for the purpose of the County Court proceedings. This construction is confirmed by both the decision in Sasterawan — in which it was held that the District Court was to some extent constrained by the charges as they were filed below, but had power to amend if this was considered appropriate, and the decisions in Neill and Candolim, which considered the nature of a ‘rehearing’ more generally.

Nature of the appeal

On the basis of the above authorities, an appeal by a rehearing is intended to function as a hearing de novo, and the County Court judge was required to disregard everything that was done in the Magistrates’ Court. However, there is one distinction that must be drawn in this regard, the plaintiff in this case appealed on the basis of sentence only, rather than appealing both his conviction and sentence.

The distinction between an appeal against sentence and an appeal against conviction and sentence was introduced into the legislative regime with the passage of the CPA. This distinction did not exist in equivalent provisions in the MCA. This is why, as noted by the second defendant’s submissions, the previous provisions required the County Court to set aside the orders of the Magistrates’ Court, whereas the new provisions required the County Court to set aside only the sentence of the Magistrates’ Court.

However, the provisions as enacted in the CPA have not been sufficiently altered to allow for different circumstances that may arise in the different types of appeals, as had the provisions in the NSW Appeal Act, which provides for the Court to have different powers in each of the different types of appeals. Nonetheless, I consider that the true procedure in the appeal under the current regime is to disregard only that part of the Magistrates’ Court proceedings from which the appeal has been brought. Thus, in the case of an appeal against conviction and sentence, the procedure outlined in Neill and Candolim would apply. However, where only the sentence is appealed from, the most appropriate course of action would be to accept the conviction and findings in the Magistrates’ Court as they stand, and only proceed to re-hear the plea and evidence relevant to sentencing. This interpretation of the provisions sits most comfortably with the authorities in the current state of the legislative scheme.

Conclusion

For the above reasons, I consider the County Court judge did not fall into error by considering only the amended version of the charge-sheet, as the appeal was one relating to sentence only, rather than to conviction and sentence. As such, the Judge was satisfied in starting from the point of conviction and taking the charge in facts as they were at that point. The rehearing was on the question of sentence only. As a result, the operative conviction orders are those of the Magistrates’ Court, whereas the operative sentencing orders are those of the County Court.

Accordingly, I dismiss the plaintiff’s County Court review.

I will hear the parties as to the proper form of order and costs in both proceedings.

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Citations

Walters v Magistrates' Court of Victoria [2015] VSC 88

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5

Matthew Fox v Director of Public Prosecutions [2022] VSCA 38

Quick v Creanor [2015] VSCA 273

Whedlock v Flaws [2022] VSC 359

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7

Statutory Material Cited

0

Baker v Smith (No 1) [2019] QDC 76

DPP v Kypri [2011] VSCA 257

Lake Macquarie City Council v Morris [2005] NSWSC 387

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[2015] VSC 88

24 March 2015